The Ninth U.S. Circuit
Court of Appeals on Friday declined to revive a civil action by the owners of a
West
Hollywood
gun shop over a “sting” operation conducted by the Los Angeles Police
Department.

Since a finding in favor
of Helene and Zoltan Szajer would necessarily imply the invalidity of their
criminal convictions for illegal firearms possession, the panel said, their
claims under 42 U.S.C. § 1983 premised on alleged Fourth Amendment violations
were barred.

A confidential informant
working for the LAPD initiated the sale of three illegal assault weapons— a
Springfield M1A semiautomatic centerfire rifle with flash suppressor; a Whitney
Wolverine semiautomatic pistol that accepted a detachable magazine and a
threaded barrel; and a Reising submachine gun—to the Szajers at their “L.A.
Guns” store in 2005.

Zoltan Szajer inspected
the weapons and initially offered the informant $1,800 for all three guns.
Shortly thereafter he told the informant he could not purchase the submachine
gun because it might be an illegal weapon, and eventually purchased the assault
rifle without the flash suppressor, which Szajer had removed, and the
semiautomatic pistol for $1,600.

The informant left the
submachine gun with Szajer, and as soon as the informant left, Szajer called
the West Hollywood Sheriff’s Department to request an officer pick up the
weapon. While he was on the phone, Mersereau and several other LAPD officers
entered the gun shop and, based on Szajer’s purchase of two assault rifles and
possession of the Reising submachine gun, detained Szajer and his wife, pending
the application for a search warrant.

Officer’s Description

In the affidavit for the
magistrate judge’s review, Mersereau described the sales transaction, a report
from an informant that Zoltan Szajer had said he possessed sixteen machine guns
that he kept under the floor boards of his residence, and an interview with a
third party which led to the discovery of an assault weapon last registered to
the Szajers’ gun shop in 1995.

A warrant was issued
authorizing a search of the gun shop and the Szajers’ residence and vacation
home. The Szajers were later charged with 13 counts relating to illegal
possession of firearms, including an H & K semiautomatic pistol found in
the safe at the Szajers’ residence.

During the criminal
proceedings against them, the Szajers did not contest the validity of the
warrant or seek to suppress the evidence obtained during the searches. They
both pled no contest to a single count—felony possession of the H & K
pistol—and were convicted.

After entering their
pleas, the Szajers filed suit against the LAPD, the city of Los Angeles, and a number of
individual officers alleging that the searches and seizures of their personal
property were illegal.

They asserted the LAPD
officers were pursuing a city policy “to put all gun stores in the City of Los Angeles out of business by
relying on stale information, creating fictitious informants, falsifying
information included in search warrants, [and] illegally entering the premises
of gun stores and planting evidence.”

Summary Judgment

U.S. District Judge
Stephen V. Wilson of the Central District of California granted the defendants’
motion for summary judgment as to all of the Szajers’ claims. He found the
allegation that the city and the LAPD had a policy or custom to violate the
Second Amendment was based on mere speculation and that the Szajers’ causes of
action were barred by Heck v. Humphrey, (1994) 512 U.S. 477.

Heck held that in order for
an individual to recover damages for “harm caused by actions whose unlawfulness
would render a conviction or sentence invalid,” the conviction or sentence must
be called into question in some way— either through direct appeal, expungement,
invalidation by a state tribunal, or by a federal court’s issuance of a writ of
habeas corpus, or else the complaint “must be dismissed.”

U.S. District Judge Jack
Zouhary of the Northern District of Ohio, sitting by designation, wrote for the
appellate panel and noted that the Heck decision left open the question
of whether its holding could be applied to Fourth Amendment claims and two
Seventh Circuit cases have since held Heck does not bar such claims.

These holdings, however,
are in direct conflict with Ninth Circuit precedent which held that a
collateral attack on the search and seizure of the evidence upon which the
plaintiffs’ criminal convictions were based was barred by Heck, Zouhary
said, explaining that Whitaker v. Garcetti, (2007)486 F.3d 572,
was controlling.

“Just as in Whitaker,
if the Szajers prevailed on their Section 1983 claim, it would necessarily imply
the invalidity of their state court convictions,” Zouhary wrote, reasoning
their civil claims “necessarily challenge the validity of the undercover
operation and in doing so imply that there was no probable cause to search for
weapons.”

He added that this
conclusion was “buttressed by the fact that the Szajers have not set forth,
either on appeal or to the district court below, any other basis for the
discovery of the assault weapon found in their home, which formed the basis for
their plea and conviction.”